AAA (Syria) & Ors, R (on the application of) v The Secretary of State for the Home Department

The central legal question was whether the Divisional Court had correctly assessed, under the Soering/Ilias line of authority, whether there were substantial grounds for believing that asylum seekers removed to Rwanda would face a real risk of treatment contrary to Article 3 ECHR, either because of conditions in Rwanda itself or because deficiencies in Rwanda’s asylum procedure would lead to direct or indirect refoulement. The appeal required consideration of the Home Secretary’s investigations and reliance on the Memorandum of Understanding and Notes Verbales (the "MEDP"), the test in Soering, the procedural duty explained in Ilias, and the approach to diplomatic assurances in Othman.

The Master of the Rolls and Underhill LJ concluded that the Divisional Court had at least in part applied the wrong question and that, on the correct assessment and having given appropriate weight to the UNHCR evidence and the known deficiencies in Rwanda’s asylum system, there were substantial grounds for thinking that removals undertaken on the basis of the Home Secretary’s assessment in May–July 2022 would expose asylum seekers to real risks of refoulement or Article 3 breaches; accordingly the Home Secretary’s certification under Schedule 3 (paragraphs 17(c)/19(c)) was unlawful for those reasons. Other challenges (including to retained EU law, data protection and many procedural points) were largely considered and rejected by the court or treated as unnecessary to decide in light of the safety conclusion.

Background and parties: The Court of Appeal heard consolidated appeals from multiple judicial-review claims begun in the Divisional Court against the Secretary of State for the Home Department concerning the Migrant and Economic Development Partnership with Rwanda (the "MEDP"). Appellants included individual asylum claimants from several states and the charity Asylum Aid; the UNHCR intervened. The Divisional Court (Lewis LJ and Swift J) had dismissed the generic challenges: [2022] EWHC 3230 (Admin).

Nature of the application / relief sought: The appellants challenged the lawfulness of the UK policy and individual decisions to treat claims as inadmissible and to remove claimants to Rwanda. Relief sought included declarations and quashing of decisions on various grounds: non-compliance with Article 3 ECHR (Soering/Ilias), failure to make adequate inquiries (Tameside), misuse of Schedule 3 certification powers (Part 5, paras 17/19 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004), incompatibility with the Refugee Convention and retained EU law (Procedures Directive), data-protection failings, and systemic procedural unfairness (short representation periods, access to legal advice, disclosure).

Issues framed by the court: The court concentrated on whether there were substantial grounds for thinking that (a) Rwanda was not a safe third country, (b) there were real risks of refoulement or Article 3 breaches, and (c) asylum claims would not be properly or fairly determined in Rwanda. Related questions included whether the Home Secretary had satisfied her Ilias and Tameside duties, the weight to be given to the UNHCR, the legal effect of the MEDP assurances (Othman factors), the lawfulness of Schedule 3 certifications, retained EU law arguments (Procedures Directive), data-protection complaints and procedural-fairness complaints about the 7‑day response window.

Court’s reasoning (concise):

• The majority (Master of the Rolls and Underhill LJ) found the Divisional Court had not fully applied the Soering/Ilias question to the asylum-system aspect and therefore considered the safety issues afresh. Giving appropriate weight to the UNHCR’s institutional expertise and the detailed evidence of shortcomings in Rwanda’s asylum procedures (DGIE gatekeeping, short perfunctory interviews, lack of legal representation, limited interpreter/training capacity, high rejection rates in certain nationalities and examples of airport refoulement), and balancing that against the MEDP assurances, monitoring arrangements and bilateral incentives, they concluded there were substantial grounds for thinking that asylum seekers removed under the MEDP in May–July 2022 would face real risks of refoulement or Article 3 ill-treatment and that the Home Secretary’s Schedule 3 certification (that claims were clearly unfounded) was unlawful.
• The majority did not decide in detail whether the Home Secretary had breached every procedural duty (Ilias/Tameside), finding it unnecessary once the substantive safety risks were established; they also dismissed many other attacks on the policy (including a number of procedural and retained-law challenges) for the reasons given by Underhill LJ.
• The Lord Chief Justice disagreed on the central safety issue and would have dismissed the appeal, concluding that on the totality of the evidence the MEDP assurances, monitoring and bilateral incentives meant substantial grounds for a real risk had not been established; the differing conclusion on the core safety question produced the split result recorded in the judgment.

Appeal allowed. The majority concluded that the Divisional Court had not applied the operative Soering/Ilias test fully to the question whether there were substantial grounds for believing that persons removed to Rwanda would face a real risk of refoulement or other Article 3 ill‑treatment; giving special regard to UNHCR evidence and reassessing the evidence, the court found substantial grounds for such risk in the state of Rwanda’s asylum procedures as at the relevant time and held that the Home Secretary’s Schedule 3 certification (so far as it denied a realistic route of appeal or review) was unlawful. Other challenges were addressed and largely dismissed for the reasons set out by Underhill LJ. (The Lord Chief Justice would have dismissed the appeals on the safety issue.)

On appeal from the Divisional Court (Lewis LJ and Swift J) High Court (Administrative Court) judgment: [2022] EWHC 3230 (Admin). Earlier interlocutory steps included refusal of interim injunction in the Administrative Court (10 June 2022), related emergency applications and interim measures in the ECtHR in June 2022 for some claimants. This decision is the Court of Appeal determination of the consolidated appeals.